RE MALUGU JOHANI EMMANUEL

CACV 614/2020

[2021] HKCA 894

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 614 OF 2020

(ON APPEAL FROM HCAL 2911/2018)

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J U D G M E N T

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Hon Lam VP (giving the Judgment of the Court):

Introduction

1.  On 10 November 2020, Deputy High Court Judge P Li (“the Judge”) refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 11 December 2018.  In that decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 31 May 2018 rejecting the applicant’s non-refoulement claim.

2.  On 20 November 2020, the applicant brought an appeal against the Judge’s decision. 

Background

3.  The applicant is a Tanzanian national.  She arrived in Hong Kong on 6 November 2013, and was permitted to remain as a visitor until 4 February 2014.  She did not depart upon the expiry of such permission.  She was arrested twice by police on 25 July 2014 and 24 March 2015.  She had been charged and convicted for offences related to overstaying in Hong Kong, breach of condition of stay and soliciting for immoral purposes.  For the last two convictions, she was sentenced to two months’ imprisonment.  The applicant lodged her non-refoulement claim on 23 May 2015 after her discharge from prison.

4.  The applicant’s claim was based on the fear that, if she returned to Tanzania, she would be harmed or even killed by unknown men to whom her husband owed a debt.  The factual background was set at paragraphs 22(a) to (e) of the Board’s decision and summarized by the Judge at [3] – [7] of the Form CALL-1 ([2020] HKCFI 2834).

5.  By notice of decision dated 31 May 2018, the Director assessed the applicant’s non-refoulement claim on all applicable grounds and determined it against them.  The applicable grounds are BOR 3 risk[1], persecution risk[2], torture risk[3], and BOR 2 risk[4]. 

6.  The applicant appealed to the Board against the Director’s decision.  The Board conducted the appeal by paper review without an oral hearing.  The Board found that the applicant had not experienced any severe pain or suffering, and noted that when she relocated to another locale in the same region of Tanzania to stay with a friend for a few months, nothing eventful happened to her during that time. Further, according to the applicant’s factual account, nothing eventful happened between that time and her departure from Tanzania.

7.  As such, the Board found that there was no real risk of harm in the event of refoulement.  The Board also found that internal relocation was viable and that state protection was available.  Thus the Board dismissed the applicant’s appeal on 11 December 2018 on all the applicable grounds.

Decision of the court below

8.  On 19 December 2018, the applicant sought leave from the court to apply for judicial review against the Board’s decision.  The applicant did not raise any grounds for judicial review in her application.

9.  Following consideration of the documents only, on 10 November 2020 the Judge refused to grant leave to apply for judicial review.  The reasons for the refusal were set out at [19] – [20] of the Form CALL-1 ([2020] HKCFI 2834, HCAL 2911/2018) as follows:

“ 19. The adjudicator had considered all the evidence submitted by the applicant including the NCF and the record of interview by the Director. He had also considered the COI set out in the appendix of the Director’s decision. The factual basis of the applicant’s claim had been fully canvassed. The applicant had not indicated in her affidavit whether there was any further evidence she intended to submit to TCAB. She had delayed for 17 months before filing her claim. Given this factual background, the adjudicator was justified in dispensing with an oral hearing.

20.  There is no error in law or procedures.  The decisions of the Director and the TCAB are reasonable.  I refuse leave for judicial review.  It is not reasonably arguable. There is no reasonable prospect of success.”

Appeal to this Court

10.  On 20 November 2020, the applicant filed her Notice of Appeal against the Judge’s decision.  Her stated grounds of appeal are that she will face hardship if she were to return to her home country, that the Board relied on information from the media that is not officially recognized, or simply hearsay and outdated, and that the lack of credible sources of information resulted in the Board making groundless speculations.

11.  This Court directed on 14 April 2021 that the applicant must lodge her written submissions on appeal by 13 May 2021, failing which the hearing date would be vacated and the appeal would be processed on paper based on materials already lodged.

12.  The applicant did not lodge any submissions as directed.  The hearing date was vacated and this appeal is processed on paper without any oral hearing.

Legal principles

13.  In assessing the merit of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals of non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  For the purpose of this appeal, the salient principles are as follows:

(1)  The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board.  Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director).  The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.

(2)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.  And

(3)  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge, the appeal should be dismissed. It is not the role of this Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A).

Discussion

14.  The applicant did not provide any particulars in support of her grounds of appeal, and did not identify any specific errors in the Judge’s decision or any other specific potential grounds for reversing the Judge’s decision.  General assertions without particulars cannot be effective grounds to support a judicial review: see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; Re Kharsu Numan [2019] HKCA 626; Re Salim Ahmed [2020] HKCA 244.

15.  In the present case, the Board rejected the applicant’s claim for non-refoulement protection based on its finding that there would be no real risk of harm in the event of refoulement, due to the applicant not having experienced any severe pain or suffering, and because nothing eventful happened after she relocated within the same region of Tanzania.  The Board also found that internal relocation was viable and that state protection was available.  Such findings are within the province of the Board, and the court will not interfere with such assessments unless they are reversible on public law grounds. 

16.  Having considered the materials before us, we are of the view that the Judge’s observations are fully justified and there is no valid public law ground for the Court to interfere with the Board’s decision. 

17.  The grounds set out in the Notice of Appeal of the applicant are vague and general.  We cannot identify any information in the Board’s decision which can validly be subject to the criticism as put forward in the Notice of Appeal.   

18.  For these reasons, this appeal is dismissed.